A Rebellion Against Law and Civilization: Genocide and Its Accomplices
Civilization is a process that progressively codifies the rules and regulations necessary for living together in peace, the process that continually engenders associations and commissions, mechanisms for monitoring and implementation of the norms.
The United Nations Charter is the best rules-based order we have, a kind of world constitution that all peoples should recognize and all States should enforce. Civilization means the rule of law, due process, transparency, accountability, justice, reparation, reconciliation, and international solidarity. The survival of mankind depends on good faith implementation of treaties and agreements, on pro-active cooperation, based on a conviction that we all share the same human dignity, the same needs and aspirations, and that we must somehow coexist on this one planet Earth. With goodwill conflicts can be prevented and grievances can be addressed in a timely fashion and resolved.
The UN Charter and civilization itself are under mortal attack by what I would call an open rebellion against international law and morals. Provocations, aggressions, escalations, wars culminating in crimes against humanity and genocide as defined in the 1948 Genocide Convention[1] are destroying the fabric of the domestic and international legal order that humanity has woven and interwoven over the centuries.
The deliberate murder of tens of thousands of innocent civilians by Israel in Gaza, the brazen disregard of Security Council and General Assembly Resolutions as well as orders and advisory opinions of the International Court of Justice manifest the general breakdown of international morals.
This revolt against law and justice is further evidenced by the complicity of a number of powerful Western States engaged in aiding and abetting the genocide in Gaza, not only by delivering lethal weapons and ammunition, but also by providing political, economic, diplomatic, academic support to the perpetrators. Among the aiders and abetters of the crimes, are the United States, Germany and the United Kingdom. Their responsibility is heightened by their endorsement of Israel’s actions in the media and before the United Nations, blocking effective action by the Security Council, and attempting to negate or banalize the genocide.
Some prominent politicians in the US, Germany and UK have engaged in “incitement” to hatred[2]against the Palestinian people, entailing further violations of the 1948 Genocide Convention. This reckless incitement has been echoed and endorsed by many newspapers and media outlets that have thereby become complicit in genocide by contributing to the “culture of hatred” that renders genocide and crimes against humanity possible.
Complicity in the murder of an individual is a grave criminal offense. The legislation of all civilized countries codify the crime and provide for investigation and prosecution. Facilitating the commission of mass murder, however, is not always perceived the same way. The enablers of crimes against humanity and genocide, the military-industrial complex, the members of the boards of directors of corporations like Lockheed/Martin, Boeing, Raytheon, Northrop Grumman, General Dynamics and other war-profiteers that earn billions from armed conflict[3], are not always perceived as felons. Their actions are seen as a form of doing “business” and, if at all, perceived as “white-collar crimes”.
Article III e of the 1948 Genocide Convention lists “complicity” as one of the prohibited crimes, precisely because complicity frustrates prevention and facilitates the execution of the crime.[4]Professor William Schabas elaborates:
“Article III lists four additional categories of the crime of genocide in addition to perpetration as such. One of these, complicity, is virtually implied in the concept of perpetration and derives from general principles of criminal law. The other three are incomplete or inchoate offences, in effect preliminary acts committed even where genocide itself does not take place. They enhance the preventive dimension of the Convention. The most controversial, ‘direct and public incitement’, is restricted by two adjectives so as to limit conflicts with the protection of freedom of expression.”[5]
Complicity may entail military, political, diplomatic, economic, propagandistic, academic support, including the misuse of the veto power in the UN Security Council, e.g. when the veto[6] frustrates the adoption of resolutions aimed e.g. at imposing an arms embargo or enforcing a cease fire[7]. The frequent use of the veto by the United States to shield Israel from criticism and sanctions by the United Nations constitutes a flagrant abuse of the veto power, and in this case has facilitated the continuation of the on-going genocide in Gaza. Abusing the veto power three times aggravates the crime of complicity and further raises the issue of “conspiracy to commit genocide” pursuant to article III b of the Convention.
The International Court of Justice can make rulings against States concerning State responsibility for genocide and complicity in genocide, as well as fix the level of reparation owed to the victims and their survivors. The International Law Commission’s Draft Code on Responsibility of State stipulates in its article 16:
“A State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if: (a) that State does so with knowledge of the circumstances of the internationally wrongful act; and (b) the act would be internationally wrongful if committed by that State.”[8]
Whereas the ICJ exercises jurisdiction over States, the International Criminal Court, (as its predecessors, the ad hoc Tribunals established by Security Council Resolution – the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR)), has jurisdiction over individuals. Moreover, not only governments and government officials, but also officials of intergovernmental organizations like the European Union[9], and private persons can be guilty of genocide, complicity or conspiracy to commit genocide. The ICTY and ICTR have relevant jurisprudence on the subject.[10]
Article 25 para. 3 of the Rome Statute (Individual criminal responsibility) provides for the criminal responsibility for complicity of those ‘aiding and abetting or otherwise assisting’ the commission of crimes covered by the jurisdiction of the Court, in the following terms: In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person:… (c) … aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission.
According to well-established precedent, numerous US, UK, and EU politicians and diplomats could be indicted by the International Criminal Court, since article 27 of the Statute of Rome discards the concept of functional immunities, stipulating:
1. This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.
2. Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person. [11]
Such immunities had already been discarded by the International Military Tribunal for Nuremberg, and in Article 7(1) of the Statute of the ICTY and article 6(1) of the stature of the ICTR.
Certainly the sale of lethal weapons to a country that is committing genocide constitutes complicity in genocide, and a violation of article 6(3) of the 2014 Arms Trade Treaty, which stipulates:
“A State Party shall not authorize any transfer of conventional arms covered under Article 2 (1) or of items covered under Article 3 or Article 4, if it has knowledge at the time of authorization that the arms or items would be used in the commission of genocide, crimes against humanity, grave breaches of the Geneva Conventions of 1949, attacks directed against civilian objects or civilians protected as such, or other war crimes as defined by international agreements to which it is a Party.”[12]
The sale of chemical agents which could be used in armed conflict would also entail a violation of the Chemical Weapons Convention[13]. There are reports of Israel using chemical weapons[14] against the civilian population of Gaza, and not all of these weapons were produced in Israel. Accordingly, corporate board members and other persons engaged in the arms trade could be indicted by the International Criminal Court for violations of articles 6, 7 and 8 of the Statute of Rome.
In this context it is worth noting the Resolution adopted by the Human Rights Council calling for an arms embargo against Israel.[15] On 5 April 2024 the Human Rights Council “demanded that Israel, the occupying power, end its occupation of the Palestinian territory occupied since 1967, including East Jerusalem. The Council also demanded that Israel immediately lift its blockade on the Gaza Strip and all other forms of collective punishment, and called for an immediate ceasefire in Gaza. The Council called upon all States to take immediate action to prevent the continued forcible transfer of Palestinians within or from Gaza. It called upon all States to cease the sale, transfer and diversion of arms, munitions and other military equipment to Israel and requested the Independent International Commission of Inquiry on the occupied Palestinian territory, including East Jerusalem, and Israel to report on both the direct and indirect transfer or sale of arms, munitions, parts, components and dual use items to Israel, the occupying power, and to present its report to the Council at its fifty-ninth session.”[16]
Who is complicit in the on-going genocide in Gaza? Surely the United States, Germany, Canada, United Kingdom, France and all countries that have delivered the weapons used in perpetrating the genocide.
On 1 March 2024 Nicaragua instituted proceedings against Germany[17] before the International Court of Justice charging Germany with complicity in the genocide of the Gaza populations. Oral hearings were held at the Peace Palace on 8 and 9 April 2024.[18] In its order of 30 April 2024, the ICJ did not issue the provisional measures of protection requested, but also rejected Germany’s request that the case be struck from the list. The Court ruled:
20. Based on the factual information and legal arguments presented by the Parties, the Court concludes that, at present, the circumstances are not such as to require the exercise of its power under Article 41 of the Statute to indicate provisional measures.
21. As to Germany’s request that the case be removed from the List …, the Court notes that, as it has held in the past, where there is a manifest lack of jurisdiction, it can remove the case from the List at the provisional measures stage (Legality of Use of Force (Yugoslavia v. Spain), Provisional Measures, Order of 2 June 1999, I.C.J. Reports 1999 (II), p. 773, para. 35; Legality of Use of Force (Yugoslavia v. United States of America), Provisional Measures, Order of 2 June 1999, I.C.J. Reports 1999 (II), p. 925, para. 29; Immunities and Criminal Proceedings (Equatorial Guinea v. France), Provisional Measures, Order of 7 December 2016, I.C.J. Reports 2016 (II), p. 1165, para. 70). Conversely, where there is no such manifest lack of jurisdiction, the Court cannot remove the case at that stage (Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), Provisional Measures, Order of 10 July 2002, I.C.J. Reports 2002, p. 249, para. 91; Immunities and Criminal Proceedings (Equatorial Guinea v. France), Provisional Measures, Order of 7 December 2016, I.C.J. Reports 2016 (II), p. 1165, para. 70). In the present case, there being no manifest lack of jurisdiction, the Court cannot accede to Germany’s request.
22. The Court recalls that, in its Order of 26 January 2024, it noted that the military operation conducted by Israel following the attack of 7 October 2023 had resulted in “a large number of deaths and injuries, as well as the massive destruction of homes, the forcible displacement of the vast majority of the population, and extensive damage to civilian infrastructure” (Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), Provisional Measures, Order of 26 January 2024, para. 46). In addition, the Court remains deeply concerned about the catastrophic living conditions of the Palestinians in the Gaza Strip, in particular in view of the prolonged and widespread deprivation of food and other basic necessities to which they have been subjected, as acknowledged by the Court in its Order of 28 March 2024 (Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), Provisional Measures, Order of 28 March 2024, para. 18).
23. The Court recalls that, pursuant to common Article 1 of the Geneva Conventions, all States parties are under an obligation “to respect and to ensure respect” for the Conventions “in all circumstances”. It follows from that provision that every State party to these Conventions, “whether or not it is a party to a specific conflict, is under an obligation to ensure that the requirements of the instruments in question are complied with” [19]. Such an obligation “does not derive only from the Conventions themselves, but from the general principles of humanitarian law to which the Conventions merely give specific expression”[20]. With regard to the Genocide Convention, the Court has had the opportunity to observe that the obligation to prevent the commission of the crime of genocide, pursuant to Article I, requires States parties that are aware, or that should normally have been aware, of the serious risk that acts of genocide would have been committed, to employ all means reasonably available to them to prevent genocide so far as possible[21]. Further, States parties are bound by the Genocide Convention not to commit any other acts enumerated in Article III[22].
24. Moreover, the Court considers it particularly important to remind all States of their international obligations relating to the transfer of arms to parties to an armed conflict, in order to avoid the risk that such arms might be used to violate the above-mentioned Conventions. All these obligations are incumbent upon Germany as a State party to the said Conventions in its supply of arms to Israel.”
Personally, I think that the arguments presented to the Court by Professor Alain Pellet and Dr. Daniel Müller on behalf of Nicaragua were compelling, and more than sufficient to justify granting the provisional measures requested, a fortiori because of the paramount obligation to prevent the continuation of the genocide. Personally, I view the decision of the Court as political, not juridical.
For now we need an immediate ceasefire and honest peace negotiations that will aim at reconstruction and rehabilitation with the help of the United Nations and all of its agencies, including UNRWA.
There can be a future in peace for both the Israelis and the Palestinians, but we must work at it, and reject the fulsome apologetics for the crimes of the Israeli government, the attempts by Western politicians and the Western media to camouflage genocide as “self-defence”, the Orwellian destruction of language that we encounter in our waning brave new world.
Notes.
[1] https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-prevention-and-punishment-crime-genocide
[2]https://www.realclearpolitics.com/video/2024/05/12/lindsey_graham_it_was_ok_for_america_to_nuke_hiroshima_so_israel_can_do_whatever_you_have_to_do.html
https://www.nytimes.com/video/us/politics/100000009173179/haley-hamas-israel.html
https://www.theguardian.com/world/article/2024/may/12/david-cameron-bbc-hamas-terrorist-group-hostage
[3] https://www.statista.com/chart/12221/the-worlds-biggest-arms-companies/
[4] https://journals.law.harvard.edu/hrj/wp-content/uploads/sites/83/2020/06/21.2HHRJ241-Dawson.pdf See also Schabas, Genocide in International Law, Cambridge University Press, 2d ed. 2009.
[5] https://legal.un.org/avl/pdf/ha/cppcg/cppcg_e.pdf
[6] UN Charter, Article 27.
[7] https://www.npr.org/2023/12/08/1218332312/israel-hamas-war-us-ceasefire-veto-un
https://www.nytimes.com/2024/02/20/world/middleeast/us-vetoes-ceasefire-resolution.html
[8] https://legal.un.org/ilc/texts/instruments/english/draft_articles/9_6_2001.pdf
[9] https://www.counterpunch.org/2024/03/18/open-letter-to-the-eu-leadership-demanding-an-immediate-ceasefire-in-gaza/
[10] https://www.icty.org/en/content/ictricty-case-law-database https://cld.irmct.org/
[11] https://www.icc-cpi.int/sites/default/files/Publications/Rome-Statute.pdf
[12] https://thearmstradetreaty.org/hyper-images/file/ATT_English/ATT_English.pdf?templateId=137253
[13] https://www.opcw.org/chemical-weapons-convention
[14] https://www.snopes.com/news/2023/10/13/idf-white-phosphorus-oct-2023/
[15] https://news.un.org/en/story/2024/04/1148261
[16] https://www.ohchr.org/en/press-releases/2024/04/le-conseil-adopte-cinq-resolutions-dont-celle-demandant-quun-cessez-le-feu
[17] https://www.icj-cij.org/case/193
[18] https://www.icj-cij.org/case/193/oral-proceedings
[19] Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004 (I), pp. 199-200, para. 158
[20] Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America, Merits, Judgment, I.C.J. Reports 1986, p. 114, para. 220
[21] Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007 (I), pp. 221-222, paras. 430-431
[22] ibid., p. 114, para. 168)
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